Can a Kentucky lawyer skip a court hearing or stop appearing for a client because the client has not paid the fee?

Plain-English summary

The question arose when a lawyer appeared with a defendant in district court but then did not appear at a later hearing in the same matter because the family had not made the required financial arrangements, and the lawyer apparently never notified the court of a withdrawal. The committee answered with a qualified no.

DR 2-110 governs withdrawal. A lawyer may not withdraw until taking reasonable steps to avoid foreseeable prejudice to the client's rights (DR 2-110(A)(2)), and may not withdraw from a matter before a tribunal without the tribunal's permission where the tribunal's rules require it (DR 2-110(A)(1)). While DR 2-110(C)(1)(f) lets a lawyer request permission to withdraw when a client deliberately disregards a fee obligation, the committee read that against the lawyer's other duties: avoiding conduct prejudicial to the administration of justice (DR 1-102(A)(5)), helping make legal counsel available (Canon 2, EC 2-25), and being zealous to avoid fee controversies (EC 2-23). Citing EC 2-32, it stressed that withdrawal should rest on compelling circumstances, with care to minimize harm to the client and due notice even when withdrawal is justified.

The committee concluded that a lawyer is ethically bound to withdraw only for compelling reasons, to give proper notice, and to obtain court permission where required, and should be particularly circumspect when the reason is a fee dispute. A lawyer who withdraws without substantial reason and adequate notice is not acting ethically, and one who appears and then refuses to make court appearances over money brings the profession into disrepute. The committee added that "employment" begins, for DR 2-110 purposes, when a lawyer has agreed to appear, has appeared, or has otherwise led the court or client to believe an appearance will be made.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer stop appearing in court because the client did not pay?

A: Not by simply failing to show up. The committee held that nonpayment can be a basis to request withdrawal under DR 2-110(C)(1)(f), but the lawyer must still avoid prejudice to the client, give notice, and obtain court permission where required.

Q: When does "employment" begin for withdrawal purposes?

A: The committee said employment begins, for DR 2-110, once a lawyer has agreed to appear, has appeared, or has otherwise led the court or client to believe an appearance will be made.

Q: Did the committee treat fee-based withdrawal differently from other withdrawals?

A: Yes, it counseled extra caution. It said a lawyer should be particularly circumspect in withdrawing over a fee disagreement and that refusing court appearances over money brings the profession into disrepute.

Background and rules framework

The opinion applies DR 2-110 of the former Code (withdrawal: steps to avoid prejudice, tribunal permission, and withdrawal for a client's deliberate fee default), read with DR 1-102(A)(5) (no conduct prejudicial to the administration of justice), Canon 2 and EC 2-25 (making counsel available), EC 2-23 (avoiding fee controversies), and EC 2-32 (manner of withdrawal). The modern analogs are Model Rule 1.16 (declining or terminating representation, including the permissive-withdrawal and notice requirements) and Model Rule 8.4 (misconduct). The committee's analysis turns on the duty to protect the client and the tribunal even when the fee is unpaid.

Citations and references

Rules of Professional Conduct:

• DR 2-110 (withdrawal from employment; tribunal permission; fee-default withdrawal); modern analog Model Rule 1.16
• DR 1-102(A)(5) (no conduct prejudicial to the administration of justice); modern analog Model Rule 8.4
• Canon 2, EC 2-23, EC 2-25, EC 2-32 (availability of counsel; avoiding fee controversies; manner of withdrawal)

See also

• KBA Ethics Op. E-269: Discharged Contingent-Fee Lawyer
• KBA Ethics Op. E-280: Charging a Discharged Client to Copy the File

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-247.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-247
Issued: July 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney, in a civil or criminal matter, fail to appear before a court hearing when the attorney has not been paid for the legal services to be rendered?

Answer:

Qualified no.

References:

DR 1-102, 2-110; Canon 2; EC 2-23, 2-25, 2-32

OPINION

This question arose when an attorney appeared with a defendant in district court in a criminal matter but did not appear in a subsequent hearing involving the same matter because the defendant's family had not made the required financial arrangements and the attorney therefore refused to further represent the defendant. It does not appear that the attorney had notified the court of the withdrawal.

DR 2-110 sets forth the ethical responsibilities of an attorney in withdrawing from employment. An attorney may not withdraw from employment until "he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client." (DR 2-110(A)(2)) In a proceeding before a tribunal, a lawyer may not withdraw without the tribunal's permission, if permission for withdrawal is required by the rules of that tribunal. (DR 2-110(A)(1)) Therefore, if the rules of the court require permission for withdrawal, then an attorney may not withdraw from a case without the court's permission.

When a client "deliberately disregards an agreement or obligation to the lawyer as to expenses or fees" the lawyer may "request permission to withdraw the matters pending before a tribunal." (DR 2-110(C)(1)(f)) This provision must, however, be read in light of the other obligations of an attorney including the obligation to avoid conduct which is prejudicial to the administration of justice (DR 1-102(A)(5)) and the lawyer's obligation to assist the legal profession in fulfilling its duty to make legal counsel available (Canon 2, EC 2-25). In addition, a lawyer should be "zealous in his efforts to avoid controversies over fees with clients...." (EC 2-23).

A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances.... A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal.... (EC 2-32)

An attorney, then, is ethically bound to withdraw only for "compelling" reasons, and to avoid injury to the client by giving proper notice to the client and obtaining (when required by court rules) the permission of the court. An attorney should be particularly circumspect in withdrawing because of disagreements regarding fees. An attorney who withdraws without substantial reason and without giving full and adequate notice and taking additional steps to avoid prejudice to the client is not acting ethically. When an attorney appears to take a case and then refuses to make court appearances because of dissatisfaction with the financial arrangements, he is bound to bring the profession into disrepute.

Some question may arise about the point at which "employment" begins for an attorney. There are circumstances in which that question poses serious factual problems. However, when an attorney has agreed to make an appearance in court, has made an appearance on behalf of a client, or has otherwise led a court or client to believe that he will make an appearance, employment has commenced for the purpose of DR 2-110.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.